PUTRAJAYA (March 31): A five-member Federal Court bench on Friday (March 31) has denied Datuk Seri Najib Razak’s review application in the SRC International Sdn Bhd case.
This follows the majority decision made by the apex bench on Friday over the Aug 23 bench that was led by Chief Justice Tun Tengku Maimun Tuan Mat, which upheld the High Court and Court of Appeal decisions on the former prime minister’s guilt.
Federal Court judge Datuk Vernon Ong Lam Kiat read out the majority judgement.
Ong, who wrote the majority judgement, dismissed all grounds laid out by the defence, namely the right to adduce further evidence on trial judge Datuk Mohd Nazlan Mohd Ghazali, that the non-adjournment sought by then counsel Hisyam Teh Poh Teik resulted in a breach of natural justice, and that not allowing Hisyam to discharge himself resulted in an incompetent appeal.
Other reasons cited by the defence in the review included the non-recusal of Tengku Maimun, and also the allegation that there were no reasons provided in the grounds of judgement that upheld the conviction.
Other judges in the majority were Federal Court judges Datuk Rhozhariah Bujang and Datuk Nordin Hassan, and Court of Appeal judge Datuk Abu Bakar Jais.
Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli was reading the dissenting judgement listing reasons why Najib should have been accorded a fair trial.
Abdul Rahman, who was the sole dissenting judge, ruled that the court was wrong in not allowing the adjournment, and in not allowing Hisyam to discharge himself as Najib's counsel.
This, he ruled, resulted in an injustice and a breach of natural justice.
Also present in court were Datin Seri Rosmah Mansor and Najib’s children Datuk Nazifuddin Najib, Mohd Nizar Najib and Nooryana Najwa Najib.
Najb was found guilty by the High Court on July 28, 2020 on three counts of criminal breach of trust and three counts of money laundering of RM42 million of SRC funds between Dec 26, 2014 and Feb 10, 2015.
He was also found guilty of abusing his power with regard to the RM4 billion Retirement Fund Inc (KWAP) loans, which the Cabinet approved via government guarantees in two meetings that he chaired in August 2011 and March 2012.
A three-member Court of Appeal upheld the conviction and sentence on Dec 8, 2021, and this was further confirmed by the five-member bench led by Tengku Maimun last Aug 23. He was subsequently sentenced to 12 years' jail and a fine of RM210 million.
Ong said the bench disagrees with the defence's contention that Nazlan had acted in conflict while presiding over the trial, as he had served as general counsel of Maybank Investment Bank Bhd and had advised the bank over matters concerning 1Malaysia Development Bhd.
According to him, the majority found no merit for the application under Rule 137, as the charges of the abuse of power, criminal breach of trust and money laundering of the RM42 million, were not relevant to Nazlan’s role in the trial.
“Hence, the argument on Nazlan’s purported conflict of interests is untenable,” he added.
Ong, who is due to retire soon, further said the majority is also of the view that the court has absolute discretion to allow or deny an adjournment, and that the presence of solicitor general Datuk Ahmad Teriruddin Mohd Salleh in not objecting shows it was neither here nor there.
“The earlier panel has exercised their discretion judiciously, as there was no denial of Najib’s rights or the claim of breach of natural justice. Thus, there is no merit for a review,” the judge said.
He explained that last May, the apex court had already fixed the hearing dates for the appeal in August, and had indicated earlier that it would not allow any adjournment, citing practice directives prioritising public interest cases.
The Federal Court judge added that the previous bench was also right in directing Hisyam to continue conducting the appeal and not discharge himself.
He said the court must be allowed to arrange its affairs and be consistent on the discharge of counsel, as to always change such a requirement would be a bad policy for the court and leave the law in a state of uncertainty.
“We affirm the decision of the earlier bench not to allow the adjournment,” Ong said.
Ong added that the challenge on Tengku Maimun not recusing herself is based on the “real danger of bias” test, and her decision was supported by other members of that bench who wrote separate judgements.
“There is no question of a quorum failure as alleged (due to the non-recusal) does not hold. Any judge can hear any recusal made against him or her, and this was earlier decided by this bench following the defence challenge over Justice Abu Bakar’s presence in this seating. Thus, there is no merit for a review of that decision,” the apex court judge added.
On the main matter regarding the conviction and sentence, Ong said the criticism by the defence is that there were no grounds in the written judgement, but the majority bench found that the earlier panel has considered the 94 grounds of appeal and the previous decisions of the courts properly.
“In our considered view, the claim by the defence that the earlier panel’s decision is unsupported by reasons is preposterous. The panel unequivocally decided after considering the grounds set in the appeal,” he said.
Ong said Najib’s move to change solicitors and counsel in the final appeal makes “[Najib] the author of his misfortune”, and this should not be subject to review by the apex court.
Abdul Rahman in his dissenting judgement touched mainly on the bench’s refusal to grant an adjournment to the appeal hearing which had left the former prime minister without effective representation.
He said that it is a basic requirement for an accused person to have legal representation, and in this case Hisyam and Messrs Zaid Ibrahim, Suflan and TH Liew had only taken the case for three weeks prior to the hearing.
The judge said three weeks is considered insufficient for Hisyam and the solicitor to take over the case, and that the three-day adjournment granted to Hisyam for him to prepare to consider making submissions was inadequate.
Abdul Rahman said it was also wrong for the previous panel to not allow Hisyam to discharge himself when the bench did not entertain the counsel’s intention as it would result in the former PM not having proper legal representation.
He said Hisyam’s mere presence in court, where he refused to take part in the proceedings, shows that he was not prepared.
The top judge also said the bench had acted wrongly in not allowing Najib’s side to submit in the appeal first, and allowing the prosecution to make the submissions.
“The procedural requirement is that the appellant (Najib) should be heard first but in this case the prosecution submitted. The unusual action was due to the fact the defence had refused to submit.”
“This led [to], with the greatest respect, a surreal experience where the applicant or defence was present in court and refused to submit. The prosecution continued to submit for two days and as a result this could be considered as an ex-parte (one-sided) application whereas in an appeal, it should have been done inter-partes (both parties) with the appellant starting. The apex court only heard one side of the submission and this may lead to the situation to be compromised,” the judge said, adding that this has led to an injustice.
In his judgement, the judge said Najib had told the bench on Aug 23 that he was not given the right to legal representation and due to the constraints imposed by the court, he was left unable to search for lawyers to represent him in the appeal.
Abdul Rahman said based on the postponement alone, he was of the opinion that the review should be allowed as there is a breach of natural justice with regards to Najib getting proper representation.
“There is merit in the applicant's (Najib’s) contention as the defence could not prepare its submission within three days when there were 30,000 pages of court documents and the judgements from the High Court and Court of Appeal amounted in excess of 1,000 pages.
“I am alarmed with the previous bench going ahead with the main appeal. Hence, I am allowing the review and the consequential order of an acquittal and discharge of the sentence,” Abdul Rahman said in reading his dissenting judgement for over an hour.
The defence was led by Tan Sri Muhammad Shafee Abdullah and Tania Scivetti while ad hoc prosecutor Datuk V Sithambaram, deputy public prosecutors Donald Joseph Franklin and Mohd Ashrof Adrin Kamarul appeared for the prosecution.